Avoiding being labelled a collective investment scheme

Avoiding being labelled a collective investment scheme

When do investment schemes amount to collective investment schemes (CISs) to require the Financial Conduct Authority’s (FCA) authorisation? Michael Wainwright, partner at Dentons, looks at the Court of Appeal’s interpretation of CISs in the case of FCA v Capital Alternatives and the impact of this judgment on commercial ventures.

Original news

Financial Conduct Authority v Capital Alternatives Ltd and others [2015] EWCA Civ 284, [2015] All ER (D) 280 (Mar)

The FCA brought an action against the promoters and operators of four investment schemes to establish whether they were collective investment schemes within the meaning of the Financial Service and Markets Act 2000, s 235 (FSMA 2000). The judge held that they were. The operators appealed and the FCA cross-appealed. The Court of Appeal, Civil Division, clarified the meaning of the phrase ‘the property is managed as a whole’ within FSMA 2000, s 235(3)(b) and held that the schemes had been collective investment schemes. Further, the FCA’s cross-appeal was dismissed as it had been open to the judge, in order to understand how the scheme would work, to consider the scheme brochure, which had not formed a part of the contractual arrangements for the scheme.

What is the background to this case?

The defendants operated a number of schemes for investment in farm harvests and carbon credits. This case looked at whether the schemes were being operated and promoted without the required authorisation of the FCA as CISs. Th

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